True or False? It Depends ...

April 26, 2014

Be glad you're not a member of the U.S. Supreme Court. If you were, you'd be in the middle of a controversy over lies told about politicians.

In a nutshell, the case involves whether it should be a crime to lie about a political candidate. There's a law against it in Ohio. I am aware of no such statute in West Virginia (Hold the jokes, Buckeye State neighbors - I've heard them all).

Ohio and 15 other states make it a crime to make false statements about candidates during the 60 days before an election.

In 2010, then-Rep. Steven Drie-haus, D-Ohio, got upset that an organization claimed that because he voted for Obamacare, he was in favor of taxpayer-funded abortions. Driehaus lost the election and was replaced by Rep. Steve Chabot, a Republican.

But Driehaus filed a complaint and the case was off to the races. Now it is being deliberated by Supreme Court justices. In essence, what they have to decide is whether Ohio's ban is an infringement on First Amendment guarantees of freedom of speech.

Justices asking questions during oral arguments seemed skeptical of the law - and rightly so. Obviously, the statute has a chilling effect. Who wants to take the chance that, by saying something critical about a candidate, he or she will be charged with a crime?

Then there's the problem of deciding whether a campaign claim really is a lie.

Driehaus provides an excellent example. A good case could be made that there was a basis for the accusation against him.

Here's why: Obamacare requires that health insurance cover various methods of birth control, including drugs some people consider to be abortifacients - that is, substances that cause fetuses to be aborted. That's why some people of faith who run businesses and organizations refuse to provide Obamacare-approved insurance to their employees. Some people with insurance through Obamacare have premiums subsidized entirely by taxpayers.

Connect the dots. You don't have to agree with the Driehaus critics to see there is a trail of dots.

Now, Driehaus had every right to be upset, especially if, in voting for Obamacare, his intent was not to provide taxpayer-funded abortions.

But how many other candidates have had good reason to be upset about claims by opponents or their supporters? Trouble is, the worst mudslinging often doesn't use outright lies.

Professionals in the art write scripts and news releases that never really come out and claim Candidate X hates Americanism, baseball and apple pie - but imply strongly that he does. All it takes is, for example, a video clip of Candidate X at a rally in which the speaker insisted that apple pie is a communist plot. Never mind that Candidate X thought he was going to a meeting of the U.S. Apple Pie Society and left as soon as he found he was mistaken.

Or how about a common tactic: Persuade someone Candidate X once voted against taxpayer funding of animal shelters. Don't tell your subject Candidate X had another good funding scheme in mind.

Next stop: A video in which your gullible friend tells the public Candidate X is in favor of euthanizing all stray dogs and cats.

This kind of stuff happens.

There's another side to the coin. Want to convince some voters Candidate X is a liar and can't be trusted? Simply file a claim against him under the state law banning campaign lies. Then start publishing advertisements noting he's under investigation. That much will be true.

That's why I have a very hard time taking bans such as Ohio's seriously. They really do threaten free, unfettered give and take during election campaigns. The high court may well rule the laws are unconstitutional for that reason.

One tough aspect of the situation is the question of who decides whether a campaign claim is true or false. Again, refer back to the Driehaus case. True or false?

It depends largely on where the voter who hears the claim stands about Driehaus, Obamacare and abortion.